2018 will more than likely see a referendum on the 8th Amendment of the Constitution in some form or another. At the Fianna Fáil Ard Fheis last weekend, delegates voted in support of a motion to oppose ‘any attempt to diminish the constitutional rights of the unborn’ thus sending a clear signal to party leader Micheál Martin as to where the majority of members stand on the 8th Amendment. In so doing, however, the Fianna Ard Fheis has only demonstrated why complex issues such as abortion do not belong in a constitution.
What Belongs in a Constitution?
Generally speaking, constitutions are a collection of rules and principles that express the shared values of a political community. To illustrate their agreed upon status, constitutional provisions tend to be harder to change than other laws such as legislation. If everybody agrees with the values in a constitution, then why should there be a need to change them? Constitutions also tend to be drafted in broad terms to allow for flexibility and to accommodate a wide variety of scenarios that the drafters may not even be capable of envisaging at the time the constitution is enacted. Drafting constitutions broadly can also help to ensure the ‘agreed’ status of constitutional norms by leaving space for differing, potentially conflicting interpretations of the same provision to co-exist. Of course, constitutions may need amending from time to time and an overly-rigid constitution can pose its own difficulties. In the United States, for example, the amendment process is so rigid that often the only way of changing the Constitution is to appoint members to the Supreme Court who are likely to interpret the Constitution differently. This has led to the Supreme Court becoming overly-politicised, undermining the legitimacy of the Court and making the appointment of Supreme Court judges a core election issue.
While Ireland’s Constitutional amendment process is more straight-forward, this does not mean that we should be more flippant when it comes to deciding what to put into the Constitution. Brexit has illustrated that referendums are blunt tools, framing complex issues into simple binary choices; the forthcoming referendum on the 8th Amendment is likely to be equally polarising, with misinformation abundant.
The Role of the Oireachtas
Areas of life requiring complex laws and regulation, or issues around which there is considerable disagreement in the community on should not be contained in constitutions. Rather, constitutions establish institutions that are empowered to decide and resolve these issues. In addition, constitutions also include checks and balances on these institutions to prevent abuse of these powers. In constitutional democracies such as Ireland, the legislature—the Oireachtas— is designed to be the branch of government best-placed to resolve disagreement. Indeed, it is said that legislation is the very product of disagreement as the people’s elected representatives debate the relevant issues and vote upon them after careful deliberation. In turn, elections ensure that the people’s representatives are held accountable for their decisions.
In practice, however, the reality does not match up with theory and very often, political parties impose their own discipline to ensure that everyone within the party votes the same way. Thus, many of the disagreements that should shape and frame legislation are instead resolved behind closed doors in parliamentary party meetings after which party members emerge united on an agreed position. In ‘Westminster-style’ parliamentary democracies such as Ireland where the Dáil elects the Taoiseach and members of the government must be members of the Oireachtas, the Government can generally count on the support of a majority in the legislature. As a result, the legislature often ends up not being a forum for resolving disagreement though debate but instead merely ‘rubber-stamps’ the will of the Government.
However, there are some issues that may not be subject to a strict party whip. Although a rarity in Ireland where party discipline is extremely strong, free votes on ‘matters of conscience’ are common in parliamentary systems around the world. Abortion is often the subject of a free vote as views can diverge dramatically on the issue, even within political parties whose members should, by definition, share a common ideology. Each party representative is instead allowed to vote according to what they personally feel is the right choice. A free vote therefore is a signal that there is considerable disagreement on a particular issue.
Disagreement and the Fianna Fáil free vote
Despite the fact that Fianna Fáil members share a common ideological base, they still disagree on abortion. Thus, the Fianna Fáíl Ard Fheis vote to support retaining the 8th Amendment came after a motion calling for Fianna Fáil to support ‘a woman’s right to choose in the forthcoming referendum on repealing the Eighth Amendment of the Constitution’. Nevertheless, it appears that Micheál Martin still intends to allow Fianna Fáil TDs and Senators a free vote on any bill to amend the Constitution on the issue of abortion.
In so doing, the leader of Fianna Fáil has acknowledged that abortion is too contentious an issue for his party to have an agreed position on. However, the free vote on repealing or modifying the 8th Amendment will be different to a free vote in other countries on abortion. In Ireland’s case it is a vote on amending or repealing a constitutional provision. It is a free vote on enshrining a particular view on a contentious issue into the Constitution, taking resolution of this issue away from the Oireachtas, the body constitutionally designed to decide such matters. It is a free vote on an issue that is too controversial for a political party to agree upon but uncontentious enough to enshrine in a constitutional provision. Ultimately, it is conferring upon members of the Oireachtas to choose according to their conscience while denying this choice to women.
If a collective of like-minded individuals such as a political party cannot agree a uniform position on an issue like abortion, then such a provision does not belong in the Constitution. By voting to retain the 8th Amendment, the Fianna Fáil Ard Fheis has only demonstrated why it should be repealed.
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